14-4060 #81847 Stay Opposition

IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

PLAINTIFF-APPELLEES OPPOSITION TO MOTIONS FOR STAY
PENDING APPEAL AND TEMPORARY STAY PENDING
RESOLUTION OF MOTION TO STAY

JONELL EVANS, individually;
STACIA IRELAND, individually;
MARINA GOMBERG, individually;
ELENOR HEYBORNE, individually;
MATTHEW BARRAZA, individually; and
KARL FRITZ SCHULTZ, individually,

Plaintiffs - Appellees,

v.

STATE OF UTAH, GARY R. HERBERT, in
his official capacity as Governor of Utah, and
SEAN D. REYES, in his official
capacity as Attorney General of Utah,

Defendants - Appellants,

No. 14-4060
Appellate Case: 14-4060 Document: 01019260687 Date Filed: 06/06/2014 Page: 1

1

OPPOSITION TO REQUEST FOR EXTENDING TEMPORARY STAY
Plaintiffs request that the temporary extension of the district courts stay be
dissolved and the motion for stay pending appeal be ruled on immediately. The district
court went to great lengths to provide Defendants sufficient time to seek a stay from this
Court before the preliminary injunction went into effect by granting a 21-day stay of its
order, notwithstanding the many factors weighing against a stay pending appeal.
Memorandum Decision & Order dated 5/19/2014, docket number 45 at 30. Yet rather
than filing the instant motion by a date that would have allowed for sufficient briefing
and deliberation, Defendants took advantage of the courtesy extended by the district court
by waiting until Thursday, June 5, 2014, to file its stay request. This left only two
business days remaining before the district courts injunction was to go into effect on
Monday, June 9, 2014. This Court should not reward Defendants decision to sit on their
hands for over two weeks and then seek a last-minute extension of the stay based on time
constraints that their own delay created.
BACKGROUND AND PROCEDURAL HISTORY
As Judge Kimball recognized in his opinion:
[T]his case is not about whether the due process clause should allow for
same-sex marriage in Utah or whether the Kitchen decision from this
District was correct. That legal analysis is separate and distinct from the
issues before this court and is currently on appeal to the Tenth Circuit Court
of Appeals. This case deals only with whether Utah's marriage bans
preclude the State of Utah from recognizing the same-sex marriages that
already occurred in Utah between December 20, 2013, and January 6, 2014.

2
Memorandum Decision & Order dated 5/19/2014, docket number 45, at 12. Plaintiffs are
four same-sex couples legally married in Utah between December 20, 2013, and January
6, 2014, the period from the day the U.S. District Court for the District of Utah in Kitchen
v. Herbert, No. 2:13cv217, enjoined Utah from prohibiting same-sex couples to marry
or refusing to recognize such marriages until the day that injunction was stayed pending
appeal. The Governor and Attorney General have both publicly recognized that those
marriages were legally valid under Utah law at the time they were entered into.
Memorandum Decision & Order dated 5/19/2014, docket number 45, at 4-5. But after
the Kitchen injunction was stayed pending appeal, Defendants unilaterally announced
that they were placing recognition of those marriages on hold. Id. at 4.
Plaintiffs filed their initial complaint on January 21, 2014, in the Third Judicial
District Court for the State of Utah, asserting claims under both the Utah and United
States constitutions. Notice of Removal dated 1/21/2014, docket number 1, at 5. In their
complaint and subsequent motion for preliminary injunction, Plaintiffs asserted that
Defendants had misconstrued Utahs marriage amendment to apply retroactively to
marriages that were legal at the time they were entered into. Plaintiffs further contended
that such a retroactive application conflicted with the longstanding practice of Utah--and
every other state-- to interpret any change in marriage eligibility laws to apply only
prospectively to marriages not yet entered into. Plaintiffs alleged that Defendants
interpretation of Utahs marriage bans violates the vested rights of married same-sex
couples under Utah law and unconstitutionally infringes upon their fundamental rights in

3
marriage, child-rearing, and family integrity protected by the Utah and United States
constitutions.
On January 28, 2014, Defendants removed the case to the United States District
Court for the District of Utah, where the case was assigned to the Honorable Dale
Kimball. Notice of Removal dated 1/21/2014, docket number 1. On February 4, 2014,
Plaintiffs moved for a preliminary injunction on all their claims. Plaintiffs Motion for
Preliminary Injunction dated 2/4/2014, docket number 8. In the interests of comity,
Plaintiffs concurrently moved for certification of the state-law claims to the Utah
Supreme Court to provide that court an opportunity to provide a definitive interpretation
of Utah law. Plaintiffs Motion for Certification dated 2/4/2014, docket number 10. In
response to Plaintiffs suggestion that state-law questions be certified to the Utah
Supreme Court, Defendants argued that certification was unnecessary and asserted that
the heart of Plaintiffs claims is whether the States failure to recognize their marriages
violates the Due Process Clause of the Fourteenth Amendment. Defendants Mem. in
Oppn to Plaintiffs Motion for Certification, dated 2/21/2014, docket number 21. The
district court heard oral arguments on Plaintiffs motions on March 12, 2013. Minute
Entry dated 3/12/2014, docket number 28.
While this case was pending in the district court, many same-sex couples
including one of the Plaintiff couples in this case continued to pursue the process of
step-parent adoption in state court so that both parents could form a legal relationship
with their children. The Attorney Generals office submitted briefs to those state courts
opposing the step-parent adoptions. Plaintiffs Factual Supplement filed 5/13/2014,

4
docket number 42 at 2. In the weeks after the federal district court heard oral arguments
on the pending motions in this case, at least four state district judges rejected the Attorney
Generals arguments and granted step-parent adoption petitions for same-sex couples
who married between December 20, 2013 and January 6, 2014, including one of the
same-sex couples who are plaintiffs in this case. Plaintiffs Factual Supplement filed
5/13/2014, docket number 42 at 2; Defendants Motion to Certify, dated 4/16/2014,
docket number 34, at 4. As part of the orders granting those step-parent adoptions, those
state courts also ordered the State to issue amended birth certificates reflecting the
adoptive step-parents legal relationship to their children. Plaintiffs Factual Supplement
filed 5/13/2014, docket number 42, at 2; Defendants Motion to Certify dated 4/16/2014,
docket number 34 at 4; Ex. A to Defendants Motion to Certify dated 4/16/2014, docket
number 34-1.
The State of Utah refused to comply with those state court orders, and the
Attorney Generals office filed at least four petitions for extraordinary relief with the
Utah Supreme Court. Plaintiffs Factual Supplement filed 5/13/2014, docket number 42,
at 2; Defendants Motion to Certify dated 4/16/2014, docket number 34 at 4. The Utah
Supreme Court did not act on the petitions for several weeks and before it did, a state
court judge issued an order to show cause threatening to hold Defendants in contempt for
their continued defiance of the order of his court. Plaintiffs Motion to File Second
Supplement dated 5/17/2014, docket number 43, at 3. Shortly after this order to show
cause issued, the Utah Supreme Court granted a limited stay of the portion of four state
court orders to issue amended birth certificates until the Court can address the petitions

5
for extraordinary relief. Ex. A to Plaintiffs Motion to file Second Supplement dated
5/17/2014, docket number 43-1. While this was going on, the Defendants in a reversal
of their previous opposition to certification also filed a motion for Judge Kimball to
certify state-law questions to the Utah Supreme Court on April 16, 2014. Defendants
Motion to Certify dated 4/16/2014, docket number 34.
On May 19, 2014, Judge Kimball denied both parties motions to certify questions
to the Utah Supreme Court and granted Plaintiffs motion for preliminary injunction.
Memorandum Decision & Order dated 5/19/2014, docket number 45. Judge Kimball
concluded that certification of state law questions was unnecessary because Plaintiffs
reading of Utah law clearly prevailed, and, in any event, the injunction rested on
Plaintiffs federal claims. The district court also rejected Defendants request for a stay
pending appeal but granted a limited 21day stay during which it may pursue an
emergency motion to stay with the Tenth Circuit. Id. at 30. As a result of the limited
21-day stay, the district courts injunction was scheduled to go into effect on Monday,
June 9, 2014.
Defendants filed the instant motion for stay pending appeal on Thursday, June 4,
2014. The next day, June 5, 2014, this Court entered an order granting a temporary stay
of the district courts order and directing the Plaintiffs to respond to the motion for stay
by June 12, 2014. Order filed by Clerk dated 6/05/14, Court of Appeals Docket # 14-
4060.


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ARGUMENT
The district court correctly concluded that Defendants unconstitutional attempt to
strip recognition from legally valid marriages imposes severe and irreparable harm on
Plaintiffs and other same-sex couples. Defendants should not be allowed to continue
perpetuating that harm through a stay pending appeal.
The Supreme Court has warned that a reviewing court may not resolve a
conflict between considered review and effective relief by reflexively holding a final
order in abeyance pending review. Nken v. Holder, 556 U.S. 418, 427 (2009). A stay
pending appeal is an intrusion into the ordinary processes of administration and judicial
review and [t]he parties and the public, while entitled to both careful review and a
meaningful decision, are also generally entitled to the prompt execution of orders. Id.
(internal quotation marks and citations omitted). Accordingly, a stay pending appeal is
an extraordinary remedy that should not be granted in the ordinary case, much less
awarded as of right. Id. at 437 (Kennedy, J., concurring).
The four factors considered by this Court when determining whether to grant a
stay are:
(1) whether the stay applicant has made a strong showing that he is likely
to succeed on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether the issuance of the stay will substantially
injure the other parties interested in the proceeding; and (4) where the
public interest lies.

KSTU, LLC v. Aereo, Inc., No. 14-4020, 2014 WL 1687749, at *1 (10th Cir. Mar. 7, 2014
(quoting Nken, 556 U.S. at 434). The first two factors are the most critical. Id.
(quoting Nken, 556 U.S. at 434). When considering success on the merits and

7
irreparable harm, courts cannot dispense with the required showing of one simply
because there is a strong likelihood of the other. Nken, 556 U.S. at 438 (Kennedy, J.,
concurring). The party requesting a stay bears the burden of showing that the
circumstances justify an exercise of that discretion. Id. at 433-34.
In the context of granting a preliminary injunction, this Court has observed that
when plaintiffs allege violations of their constitutional rights, a finding of likelihood of
success on the merits will often be the determining factor because the deprivation of
constitutional rights constitutes irreparable harm, the government suffers no cognizable
harm when it is prevented from acting unconstitutionally, and it is always in the public
interest to vindicate constitutional rights. See Hobby Lobby Stores, Inc. v. Sebelius, 723
F.3d 1114, 1145 (10th Cir. 2013) (en banc) (plurality). Conversely, if the government is
unable to show that it is likely to prevail in sustaining the constitutionality of its actions,
then it will generally be unable to show that the remaining factors weigh in favor of
allowing it to continue engaging in unconstitutional conduct. Memorandum Decision &
Order dated 5/19/2014, docket number 45.
Defendants have not carried the burden necessary to secure a stay pending appeal.
To the contrary, all relevant factors point strongly in favor of Plaintiffs motion for
preliminary injunction and against the stay Defendants seek.
I. The Supreme Courts Stay in Kitchen Does Not Signal that All Injunctions
Involving Marriage for Same-Sex Couples Must Automatically Be Stayed
Pending Appeal.

The Supreme Court has not adopted a policy of automatically staying every
decision touching upon the subject of marriage for same-sex couples. Indeed, just a few

8
days ago the Supreme Court denied a motion to stay enforcement of a district courts
order that struck down Oregons marriage bans pending appeal from a denial of a motion
to intervene. See Natl Org. for Marriage v. Geiger, No. 13A1173 (U.S.), order dated
June 4, 2014.
Defendants argue that because the Supreme Court stayed Kitchen pending appeal,
Judge Kimballs order to recognize the marriages of same-sex couples that have already
taken place must be stayed as well. Stay Motion at 15-16. But, as discussed below, the
legal questions, irreparable harms, and balance of hardships in this case are different than
in Kitchen. The Supreme Court may ultimately decide whether Utah must allow
additional same-sex couples to marry. But regardless of the outcome in Kitchen, Utah
cannot strip recognition from the marriages that have already occurred.
II. Defendants Have Not Made a Strong Showing of Likelihood of Success on the
Merits.

The district court held that by stripping recognition from over 1,000 marriages that
were legal under the laws of Utah at the time they were entered into, Defendants violated
two independent liberty interests under the Fourteenth Amendment. Memorandum
Decision & Order dated 5/19/2014, docket number 45 at 13. First, the district court held
that Defendants violated Plaintiffs liberty interests in their fundamental right to marriage
and family integrity that spring directly from the Fourteenth Amendment itself. Id. at 13-
14. Second, the district court held that Defendants violated state-created liberty interests
in their vested rights as married couples. Id. at 14-26. To meet the threshold

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requirements for securing a stay pending appeal, Defendants must make a strong showing
that they are likely to overturn both of those holdings.
A. Defendants Are Not Likely to Overturn the District Courts Ruling
Based on Rights Springing Directly from the Fourteenth Amendment.

As detailed in the district courts opinion, Defendants effort to strip recognition
from Utah marriages that were validly entered into at the time those marriages took place
violates fundamental rights and liberty interests at the core of the Fourteenth
Amendment. There can be no doubt that freedom of personal choice in matters of
marriage and family life is one of the liberties protected by the Due Process Clause of the
Fourteenth Amendment. Elwell v. Byers, 699 F.3d 1208, 1213 (10th Cir. 2012)
(quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974)). As the
Court declared in Meyer v. Nebraska, 262 U.S. 390 (1923), the liberty guaranteed by the
Due Process Clause denotes not merely freedom from bodily restraint but also the right
of the individual ... to marry, establish a home and bring up children. Id.; accord Lehr
v. Robertson, 463 U.S. 248, 258 (1983) ([T]he relationship of love and duty in a
recognized family unit is an interest in liberty entitled to constitutional protection.).
There is, accordingly, a sphere of privacy or autonomy surrounding an existing marital
relationship into which the State may not lightly intrude. Zablocki v. Redhail, 434 U.S.
374, 397 n.1 (1978) (Powell, J., concurring).
There is no such thing as an interim marriage. Whether or not the Fourteenth
Amendment requires states to allow same-sex couples to marry in the first instance,
same-sex couples who have legally married are protected by the same fundamental rights

10
and liberty interests as any other legally married couple. As with any other married
couple, divesting those married same-sex couples of the duties and responsibilities that
are an essential part of married life violates due process. United States v. Windsor, 133
S. Ct. 2675, 2695 (2013). As Judge Kimball explained:
In this case, Plaintiffs solemnized legally valid marriages under Utah law as
it existed at the time of such solemnization. At that time, the State granted
Plaintiffs all the substantive due process and liberty protections of any other
marriage. As in Windsor, the States decision to put same-sex marriages on
hold, deprive[s] some couples married under the laws of their State, but
not other couples, of both rights and responsibilities. Similarly, the
principal effect of the States actions is to identify a subset of state-
sanctioned marriages and make them unequal.

Memorandum Decision & Order dated 5/19/2014, docket number 45 at 13 (citations
omitted).
Defendants fail to identify any precedent supporting their radical proposition that a
state may retroactively void or strip recognition from couples legally married under that
states law at the time the marriages were solemnized. Indeed, such an attempt to nullify
existing legal marriages would contravene the longstanding and consistent practice by
Utah and other states of protecting marriages from retroactive invalidation by subsequent
legal changes.
1
Accordingly, Defendants are not likely to succeed on the merits of their
claims and cannot make the threshold showing necessary for a stay pending appeal.

1
See Tufts v. Tufts, 8 Utah 142, 30 P. 309, 310 (Utah 1892) (marriages legally entered
into create vested rights whose validity are not affected by change in underlying marriage
statutes); Strauss v. Horton, 207 P.3d 48 (Cal. 2009) (constitutional amendment
declaring that only marriage between a man and a woman is valid or recognized cannot
be applied retroactively to strip recognition from marriages of same-sex couples that had
already taken place); Cook v. Cook, 104 P.3d 857 (Ariz. Ct. App. 2005) (statute declaring
that marriages between cousins from other jurisdictions are no longer recognized in

11

Arizona could not be applied to marriages that were already recognized in Arizona before
the statute was passed); In re Ragans Estate, 62 N.W.2d 121 (Neb. 1954) (statute
prohibiting common law marriages could not be applied retroactively to nullify existing
marriages); Cavanaugh v. Valentine, 41 N.Y.S.2d 896 (N.Y. Sup. Ct. 1943) (same);
Atkinson v. Atkinson, 203 N.Y.S. 49 (N.Y. App. Div. 1924) (It cannot be held that the
Legislature intended that a marriage performed in accordance with the law existing at the
time of performance can be declared void because of a subsequent change in the
statute.); Wells v. Allen, 177 P. 180 (Cal. Ct. App. 1918) (giving legal effect to a
common law marriage which was a valid marriage in this state at the time these parties
assumed that relation); Succession of Yoist, 61 So. 384 (La. 1913) (anti-miscegenation
statute declaring that Marriages between white persons and persons of color are . . . null
and void does not apply retroactively to interracial marriages already in existence); and
Callahan v. Callahan, 15 S.E. 727 (S.C. 1892) (If the act of 1865 should be given such
retroactive effect in this case, it would result in nullifying the marriage of Green and
Martha, which was a contract entered into by two persons having full power, as the law
then stood, to make it a valid contract . . . . The relation of husband and wife, in law,
subsisted between Green and Martha . . . vested rights spring therefrom, which could not
be taken away by the subsequent legislation.).

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B. Defendants Are Not Likely to Overturn the District Courts Ruling
Based on Liberty Interests Created By State Law
As Judge Kimball also explained in his opinion, Utah law has for over a century
recognized that once couples enter into a legally valid marriage, they have vested rights
in that marriage that cannot be taken away by subsequent changes in the law. Tufts v.
Tufts, 8 Utah 142, 30 P. 309, 310 (Utah 1892); see also supra, note 1 (collecting cases).
Utah law also applies a strong presumption against interpreting statutory enactments and
constitutional amendments in a manner that would retroactively impair vested rights. See
Waddoups v. Noorda, 2013 UT 64, 321 P.3d 1108; Miller v. USAA Cas. Ins. Co., 44 P.3d
663, 674 (Utah 2002). In accordance with those settled principles of interpretation, the
district court properly concluded that Plaintiffs had vested rights in their marriages under
Utah law and Utahs marriage amendment does not apply retroactively to impair those
vested rights.
2

2
Defendants argue that Utahs statutory and constitutional marriage bans have a clear
and unavoidable retroactive application because they the use the word recognize. But
in Waddoups, the Utah Supreme Court analyzed a statute declaring that the tort of
negligent credentialing is not recognized as a cause of action and concluded that the
statute lacked the clear and unmistakable intent necessary to be applied retroactively to
causes of action that accrued before the statute was passed. Even though the cause of
action was no longer recognized, plaintiffs could continue to sue and recover damages
after the statute was passed as long as the underlying conduct occurred prior to passage.
Most significantly, all of Utahs marriage bans use the present tense, and the Utah
Supreme Court in Waddoups explained that [i]t simply cannot be said that the use of the
present tense communicates a clear and unavoidable implication that the statute operates
on events already past. Id. at 7. The Utah Supreme Courts decision in Waddoups is
consistent with the California Supreme Courts ruling in Strauss that Proposition 8s use
of the present tense did not retroactively apply to prior marriages because a measure
written in the present tense (is valid or recognized) does not clearly demonstrate that the
measure is intended to apply retroactively. Strauss, 207 P.3d at 120.


13
In arguing that Plaintiffs cannot have vested rights in their marriages because the
Kitchen decision was a non-final judgment with a pending appeal, Defendants
erroneously rely on Plyler v. Moore, 100 F.3d 365, 374 (4th Cir. 1996), and Gavin v.
Branstad, 122 F.3d 1081(8th Cir. 1997). Stay Motion at 10. Those cases had nothing to
do with pending appeals. They addressed a totally different question, whether a
continuing prospective injunction arising from a consent decree in prison-reform
litigation could be considered final for purposes of Plaut v. Spendthrift Farm, Inc., 514
U.S. 211 (1995). Indeed, those cases involved ongoing consent decrees where no appeals
had been pending for many years. Moreover, the prisoners in Plyler and Gavin
contended that they had vested rights in the continuation of the consent decrees. Here,
Plaintiffs are not claiming they have a vested right in the continuation of the Kitchen
injunction; rather, they are claiming they have vested rights in their legal marriages that
have already taken place.
Defendants are not likely to persuade the Court to adopt their theory that the
marriages entered into while the Kitchen injunction was in effect cannot produce vested
rights because they will be declared void ab initio if Kitchen is overturned on appeal.
Defendants contention -- that all actions taken by third parties while an injunction is in
effect should be declared void ab initio if the injunction is later overturned -- conflicts
with the basic rule that the judgment of a district court becomes effective and
enforceable as soon as it is entered; there is no suspended effect pending appeal unless a
stay is entered. In re Copper Antitrust Litig., 436 F.3d 782, 793 (7th Cir. 2006). District
court injunctions would be rendered meaningless if, despite the lack of a stay, all actions

14
taken in accordance with a district court injunction could be declared void ab initio years
later once the injunction is overturned.
3

Moreover, at least four Utah state courts have rejected Defendants legal
arguments concerning the effect of Utahs marriage amendment and granted step-parent
adoptions to couples who legally married while the Kitchen injunction was in effect.
Indeed, Defendants have failed to identify any case in the Utah state courts that have
been favorable to the States position. Memorandum Decision & Order dated 5/19/2014,
docket number 45 at 33. Defendants cannot meet their heavy burden of showing that
they are likely to prevail on appeal and that the federal district court and every Utah state
court to rule on the merits of the issue erred.
III. Defendants Cannot Show They Will Be Irreparably Injured Without a Stay
Pending Appeal.

A. The District Courts Preliminary Injunction Does Not Violate Principles
of Comity to Utah State Courts.
Defendants assert that if Judge Kimballs injunction is not stayed, it may interfere
with the Utah Supreme Courts state law determinations pending before it. Stay Motion
at 17. But, having removed this case to federal court and urged the court to rule on

3
Defendants are simply wrong in asserting that the legal effect of reversing a lower court
injunction is that the injunction never existed. Stay Motion at 14. The source they cite
for that proposition states that an injunction that is reversed ought never to have
existed. Butler v. Eaton, 141 U.S. 240, 244 (1891) (emphasis added). While it is in
effect, an injunction may have binding and permanent consequences that cannot be
undone even if it subsequently overturned. See Prairie Band of Potawatomi Indians v.
Pierce, 253 F.3d 1234, 1247 (10th Cir. 2001) (recognizing certain types of injunctions
once complied with, cannot be undone). Moreover, a person who disobeys a district
court injunction that has not been stayed may be punished with contempt even if the
underlying injunction is subsequently reversed. See Walker v. City of Birmingham, 388
U.S. 307, 314 (1967).

15
Plaintiffs federal claims without certifying state-law questions, Defendants cannot now
turn around and argue that, under principles of comity, the district court (and by
extension this Court on appeal) should have deferred to state court proceedings and
refrained from issuing an injunction. As Judge Kimball observed, It strikes the court as
procedural gamesmanship for the State to remove a case to federal court and then ask the
court in the forum the State chose to abstain from acting. Memorandum Decision &
Order dated 5/19/2014, docket number 45 at 44 n.5.
Indeed, Defendants arguments in support of a stay pending appeal directly
contradict the arguments they made to the district court in opposing Plaintiffs motion for
certification. Defendants told the court that [t]he purposes of certificationthe respect
for comity, the efficient use of legal and judicial resources, and the expeditious resolution
of outcome determinative issuesare not present in this case. Defendants Mem. in
Oppn to Plaintiffs Motion for Certification, dated 2/21/2014, docket number 21, at 12.
According to Defendants, certification would not help the Court in its consideration of
the federal issues presented in this case, id. at 2, because [i]f Plaintiffs seek a
determination of the effect of a vested right on their federal due process claims, that
question is one for the federal court, not the Utah Supreme Court, id. at 11. In light of
their previous litigation strategy and representations to the court, the district court
correctly concluded that Defendants later attempts to invoke principles of comity and

16
deference to state courts was a delay tactic. Memorandum Decision & Order dated
5/19/2014, docket number 45 at 33.
4

In any event, in light of Judge Kimballs resolution of the federal constitutional
claims, Defendants arguments to the Utah Supreme Court regarding state law are moot.
Whether or not the Utah Supreme Court would hold that Utah law authorizes Defendants
to strip recognition from legally married same-sex couples, the Defendants must still
recognize those marriages based on their obligations under the Fourteenth Amendment.
B. Defendants Cannot Show Any Other Cognizable Harm
There is no irreparable harm in this case comparable to the alleged irreparable
harm that apparently prompted the Supreme Court to grant a stay pending appeal in
Kitchen. The question before the Supreme Court in Kitchen was whether Utah should
have to continue issuing additional marriage licenses beyond those that were already
issued. There is no similar claim of irreparable harm here because [t]he States marriage
bans are currently in place and can stop any additional marriages from occurring.
Memorandum Decision & Order dated 5/19/2014, docket number 45 at 27-28. The
States harm in the Kitchen litigation with respect to continuing to issue same-sex
marriage licenses is not the same as the harm associated with recognizing previously-
entered same-sex marriages that were valid at the time they were solemnized. Id. at 27.
The only harms Defendants put forth are the theoretical administrative
difficulties that would result if the State provided recognition to Plaintiffs marriages

4
Moreover, it is uncertain that the Utah Supreme Court will even reach the merits of the
state-law issues because there are significant procedural questions regarding Defendants
standing to collaterally attack a final adoption order.

17
and those marriages were somehow later voided as a result of the Kitchen litigation. But,
as discussed above, Defendants are mistaken, as the ultimate outcome in Kitchen does not
have any effect on the validity of Plaintiffs marriages. Because Defendants are wrong
about the applicable law, the purported harms they will suffer from an injunction are
simply illusory.
IV. Defendants Cannot Show the Balance of Harms Tips Decidedly In Their
Favor.
The balance of harms strongly tips in favor of Plaintiffs and against Defendants
request for a stay pending appeal. Granting such a stay would impose enormous hardship
on Plaintiffs and other same-sex couples by holding them in an indefinite period of
limbo. These couples have an urgent need for those marriages to be recognized now as
they face the same life events and financial decisions in 2014 and 2015 that other families
will encounter over the course of next two years or more. Cf. Yue v. Conseco Life Ins.
Co., 282 F.R.D. 469, 484 (C.D. Cal.2012) (finding that when plaintiffs insurance
policies had been placed in legal limbo . . . [t]he resulting uncertainty, stress, and
inability to plan are sufficient to constitute irreparable harm). As Judge Kimball
explained, The State has placed Plaintiffs and their families in a state of legal limbo with
respect to adoptions, child care and custody, medical decisions, employment and health
benefits, future tax implications, inheritance, and many other property and fundamental
rights associated with marriage. Memorandum Decision & Order dated 5/19/2014,
docket number 45 at 26. The indignity and uncertainty caused by Defendants actions are

18
impossible to quantify in a dollar amount, and damages would be inadequate to remedy
them.
In contrast, the harms suffered by Defendants are nonexistent because the
government suffers no cognizable harm much less irreparable harm -- when it is
prohibited from acting unconstitutionally. See Hobby Lobby Stores, Inc v. Sebelius, 723
F.3d 1114, 1145 (10th Cir. 2013) (en banc) (plurality). Similarly, [a]lthough the State
has an interest in applying state law, that interest is only in applying the controlling law at
the time. Memorandum Decision & Order dated 5/19/2014, docket number 45 at 25.
See also Strauss, 207 P.3d at 122 (retroactively application of ban on marriage for same-
sex couples was not essential to serve the states current interest . . .in preserving the
traditional definition of marriage by restricting marriage to opposite-sex couples because
that interest is honored by applying the measure prospectively).
V. Defendants Cannot Show that a Stay Would Be in the Public Interest
The district court rightly concluded that granting a stay pending appeal would be
contrary to the public interest. [I]t is always in the public interest to prevent the violation
of a party's constitutional rights. Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012).
Moreover, the public is well served by having certainty about the status of Plaintiffs
marriages. That certainty not only benefits Plaintiffs and their families but State
agencies, employers, and other third parties who may be involved in situations involving
issues such as benefits, employment, inheritance, child custody, and child care.
Memorandum Decision & Order dated 5/19/2014, docket number 45 at 28.

19
Defendants assert that a stay pending appeal is necessary to prevent administrative
problems that would result in the event Kitchen is overturned and Plaintiffs marriages
are rendered void ab initio. But Plaintiffs marriage must continue to be recognized
regardless of the ultimate outcome in Kitchen. To the extent that any legal uncertainty
currently exists, it is the product of Defendants decision to retroactively apply Utahs
marriage amendment in an unprecedented way and to file a series of petitions for
extraordinary relief to avoid complying with federal and state court orders that reject their
incorrect and unconstitutional interpretation. Granting a stay pending appeal will only
prolong the legal limbo that Defendants have created. It is in the interest of all parties
and the public at large to end that legal limbo as quickly as possible.
CONCLUSION
For the foregoing reasons, Defendants motions for stay pending appeal and the
temporary stay pending resolution of motion should be denied.

Respectfully Submitted,

/s/ Erik Strindberg
Erik Strindberg (Utah Bar No. 4154)
Lauren I. Scholnick (Utah Bar No. 7776)
Kathryn Harstad (Utah Bar No. 11012)
STRINDBERG & SCHOLNICK, LLC
675 East 2100 South, Ste. 350
Salt Lake City, UT 84106
Telephone: (801) 359-4169
Facsimile: (801) 359-4313
erik@utahjobjustice.com
lauren@utahjobjustice.com
kass@utahjobjustice.com
John Mejia (Utah Bar No. 13965)
Leah Farrell (Utah Bar No. 13696)
AMERICAN CIVIL LIBERTIES UNION
OF
UTAH FOUNDATION, INC.
355 N. 300 W.
Salt Lake City, Utah 84103
Telephone: 801.521.9862
Facsimile: 801.532.2850
jmejia@acluutah.org
lfarrell@acluutah.org

20

Attorneys for Plaintiffs-Appellees

Joshua A. Block
ACLU LGBT Project
125 Broad Street, Floor 18
New York, New York, 10004
Telephone: (212) 549-2593
Facsimile: (212) 549-2650
jblock@aclu.org
Dated: June 6, 2014


21
CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that with respect to the foregoing Opposition:

(1) all required privacy redactions have been made per 10th Circ. R. 25.5;

(2) if required to file additional hard copies, that the ECF submission is an exact
copy of those documents;

(3) the digital submissions have been scanned for viruses with the most recent
version of a commercial virus scanning program, Sophos Mac AntiVirus,
updated 6/6/2014, and according to the program are free of viruses.

June 6, 2014 ___s/ Leah Farrell_______
Leah Farrell
ACLU of Utah
355 N 300 W
(801) 521-9862

CERTIFICATE OF SERVICE
I hereby certify that on the 6th of June, 2014, a true, correct and complete copy of
the foregoing Opposition was filed with the Court and served on the following via the
Courts ECF system:
Mr. Joshua A. Block: jblock@aclu.org
Ms. Leah Farrell: lfarrell@acluutah.org
Ms. Kathryn Harstad: kass@utahjobjustice.com
Ms. Joni J. Jones: jonijones@utah.gov
Mr. Kyle J. Kaiser: kkaiser@utah.gov
Mr. John M. Mejia: jmejia@acluutah.org
Mr. Erik Strindberg: erik@utahjobjustice.com


22
In addition, I hereby certify that on June 6, 2014, I mailed or served the foregoing
Opposition by first-class mail, postage prepaid, to the following:
Mr. Parker Douglas
Office of the Attorney General for the State of Utah
160 East 300 South, 6th Floor
P.O. Box 140856

___s/ Leah Farrell_______
Leah Farrell
ACLU of Utah
355 N 300 W
(801) 521-9862


14-4060 #81847 Stay Opposition

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14-4060 #81847 Stay Opposition

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IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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